1. INFANTS — Children's Code — Method of Review — Violation — CHINS Probation — Exclusive. Since Colorado Children's Code when viewed in its entirety fully provides for a method of review to be taken in the event that a child violates the terms and conditions of a CHINS probation, it is only reasonable to assume that, as to those acts of a child which are not denominated as acts of delinquency, this method of review was intended to be exclusive.
Opinion by JUDGE PIERCE.
This is a case arising under the Colorado Children's Code. D. R., a sixteen-year-old girl, hereinafter referred to as the respondent child, was adjudicated by the District Court of Adams County in May 1970, as a child in need of supervision (CHINS) as defined by the Colorado Children's Code, 1967 Perm. Supp., C.R.S. 1963, 22-1-3(18), which provides:
"a) 'Child in need of supervision' means any child:
"b) Who is an habitual truant from school;
"c) Who has run away from home or is otherwise beyond control of his parent, guardian, or other legal custodian; or
"d) Whose behavior or condition is such as to endanger his own or others' welfare."
The record does not indicate what sentence, if any, was given this child, but the statute is clear that she could not have been initially confined in Mount View Girls' School, except for examination and evaluation.
After said adjudication, the court placed the respondent child on probation for a period of one year upon certain terms and conditions which provided, in part, as follows:
"* * * *
"3. You shall be obedient to your parents or legal guardian, school officials, and law enforcement officers.
"4. You shall attend school regularly and shall work to the best of your ability.
* * * *"
The last full paragraph of said terms and conditions of probation reads as follows:
"If the probationer violates any of the terms and conditions as stated herein, he [sic] may be given notice for a court hearing to determine whether probation should be changed, extended for a longer time or revoked. If probation is revoked, any penalty stayed by the Court may be immediately carried out."
On September 23, 1970, a petition was filed in the Adams County District Court alleging that the respondent child was a delinquent child and stating as the only ground therefor that she had "violated a lawful order of this Court entered pursuant to the Colorado Children's Code on or about May 18, 1970, in that on or about September 4, 1970, in the County of Adams, State of Colorado, she was truant from school and refused to return to foster care." This was the sole ground for filing of the petition in delinquency.
On September 24, 1970, the petition was heard by a referee acting for the court. The respondent child was not represented by counsel. The respondent child was thereafter found to be a delinquent and at that point in the proceedings counsel was first requested. The Public Defender was appointed to represent the respondent child.
The respondent child filed a request for rehearing of the petition in delinquency which request was granted. Thereafter, a motion to dismiss was filed on the ground that violation of a term or condition of probation of a child adjudicated as "Child in Need of Supervision" does not constitute proper grounds for adjudicating the respondent child a delinquent and that a hearing for revocation of probation was the only, and proper, course to pursue. The motion was denied.
A hearing on the petition of delinquency was held on September 25, 1970, and on September 29, 1970, the respondent child was adjudicated a delinquent, sentenced to an indeterminate term, and committed to the Mount View Girls' School.
On November 20, 1970, the respondent child filed a motion in arrest of judgment, challenging the jurisdiction of the court and alleging that the petition failed to charge an offense constituting delinquency. This motion was also denied.
The Colorado Children's Code states in 1967 Perm. Supp., C.R.S. 1963, 22-1-3(17)(a)(i), a "'delinquent child' means any child ten years of age or older who, regardless of where the violation occurred, has violated: (ii) Any federal or state law, except state traffic and game and fish laws or regulations; (iii) Any municipal ordinance except traffic ordinances, the penalty for which may be a jail sentence; or (iv) Any lawful order of the court made under this chapter." A child found to be delinquent is subject to penalties far more severe than those imposable for violations of CHINS provisions of the statute or for violations of a CHINS probation.
The determinative issue in this case is whether a violation of the terms and conditions of probation in a CHINS adjudication is a violation of a "lawful order of court" made under the Children's Code within the meaning of 1967 Perm. Supp., C.R.S. 1963, 22-1-3(17)(a)(iv). We answer this question in the negative.
In an effort to arrive at the true meaning of this statute, this Court must determine the legislative intent giving rise to it. Houston v. Symington Wayne Corp., 149 Colo. 332, 369 P.2d 424. In so doing, we are guided by the Colorado Supreme Court in Kirschwing v. O'Donnell, 120 Colo. 125, 207 P.2d 819:
"* * * 'If the meaning of the language as it was intended to be understood * * * be uncertain or doubtful, then a question of legislative intent is presented and that intention must be ascertained by a consideration of the language in connection with the context of the statute in which the language is employed in its entirety, the object which said statute was designed to attain, and the obvious consequences which would follow a construction either way.' Klench v. Board of Pension Fund Com'rs., 79 Cal. App. 171, 249 Pac. 46."
Recent amendments to the Children's Code clearly indicate that the legislature intended to segregate children found to be in need of supervision under 1967 Perm. Supp., C.R.S. 1963, 22-3-12, from delinquents by providing that the former may not be initially placed in institutions for juvenile delinquents nor may they be transferred by the director of institutions to such institutions without prior approval of court. 1969 Perm. Supp., C.R.S. 1963, 22-3-12(1)(h)(ii); 1967 Perm. Supp., C.R.S. 1963, 22-8-4(1)(c). The legislature also set up separate sections of the statute to separate the disposition and punishment of those adjudicated as CHINS from those adjudicated as delinquent. ( Compare 1967 Perm. Supp., C.R.S. 1963, 22-3-12, and 22-3-13, as amended by 1969 Perm. Supp.)
More specifically, the intention of the legislature in differentiating between treatment of delinquents and treatment of children in need of supervision is manifested by its definition of a "delinquent child" to include, in its first two categories, only those children who commit acts which, if they were adults, would constitute commission of either a felony or a major misdemeanor. 1967 Perm. Supp., C.R.S. 1963, 22-1-3(17). In this case, the respondent child committed no act remotely comparable to those set forth in the statute.
[1] Viewing the statute in its entirety, we find that the Colorado Children's Code fully provides for the actions to be taken in the event that a child violates the terms and conditions of a CHINS probation. 1967 Perm. Supp., C.R.S. 1963, 22-3-18, comprehensively deals with this problem by providing for review of the terms and conditions of probation at least once each six months, and in the event that such terms and conditions are violated, it provides for notice to the child, his parents, guardian, or other legal custodian, and a full hearing on the matter to determine whether these conditions and terms were in fact violated. It is only reasonable to assume that, as to those acts of the child which are not denominated as acts of delinquency, this method of review was intended to be exclusive.
[2] Under the facts before us, it would be contrary to the obvious legislative intent to allow a child to be committed to an institution for juvenile delinquents where the only acts alleged were those which were not, in and of themselves, grounds for an adjudication of delinquency and for which the statute already provides a comprehensive and complete procedure for review and punishment.
Judgment is reversed.
CHIEF JUDGE SILVERSTEIN and JUDGE DWYER concur.
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